RS

MEMBER DIARY

Citizen’s United Affirmed

Overlooked in the coverage of the Supreme Court’s recent Arizona immigration law decision and anticipation of the health care decisions, is the summary reversal of the case that originated out of Montana. To summarize, Montana law campaign finance law dictated that corporations were prohibited from making campaign contributions or from engaging in political advocacy. On its face, this would appear to be in direct conflict with the Supreme Court’s Citizen’s United decision. However, within that decision, there was a justification for limiting campaign contributions- corruption or the appearance of corruption. Montana argued that they were uniquely situated given their history of corruption in the political process. A group of businesses challenged the law and the Montana Supreme Court then upheld the state statute. The businesses then appealed to the Supreme Court asking for a stay of the court order pending review. That stay was granted and the case was slated for consideration by the Court. When the stay was granted, Justice Ginsburg, joined by Justice Breyer, took the unusual step of drafting a response sort of directing Montana towards a defense of their law. In the interim, the business groups asked that the Court summarily reverse the decision of the Montana Supreme Court. On June 25th, they did just that.

The general procedure for petitions is as follows: a party appeals to the Supreme Court should they fail to prevail in a lower court and wish to proceed with an appeal to the Supreme Court. Generally, cases are then slated for consideration in a scheduled conference after getting a docket number. The Supreme Court will grant a case- called cert- if the issues present serious constitutional issues or if there are differences of opinion among the different circuit courts. In fact, many of your 9-0 or 8-1 decisions involve these “circuit split” cases. The Court will grant cert if the question is unique and many times they will hold over a case until a later conference if there is a case currently before it, yet undecided, that may address the issues in the pending case. When a party petitions the Court, they explain the reason for the request and the respondent briefly explains why the Court should not take the case. Sometimes, the Court will issue a CVSG- Call for the View of the Solicitor General. Here, they ask for the federal government’s position on the issue(s) contested. This often delays consideration of the case until the Solicitor General responds. Generally speaking, if the Solicitor General argues that the case not be taken, the Court will usually follow that advice, but not always. After they get all views, the case is again slated for conference. It takes only 4 Justices to grant a case. Once this is announced, briefs are presented and the case is scheduled for oral argument.

While this is happening, a party may ask for summary reversal of a lower court decision by the Supreme Court. These are often issued as per curium unsigned opinions. That is what happened in this particular case. Per curium decisions are 9-0 decisions as was this one technically, but in reality it was 5-4 as Breyer wrote a dissent joined by Kagan, Sotomayor and Ginsburg.

As stated earlier, it usually takes only four votes to grant a case. So if there are four dissenters here, why didn’t the Court grant cert and take the case? As Breyer explained in his dissent from the decision, the five man majority that decided Citizen’s United- Roberts, Kennedy, Scalia, Thomas and Alito- were apparently steadfast in their support of that decision. No one really knows what is said or discussed in the conference, but one can assume from the wording of the Breyer dissent that no amount of talk and debate would result in any member of the majority reconsidering Citizen’s United. Hence, to the dissent, although adamantly opposed to Citizen’s United in principle and practice, they realized re-argument of Citizen’s United would have been an exercise in futility. Thus, technically the Court, through the per curium decision, granted cert and then summarily (without briefing or agument) reversed the lower court decision.

There is no doubt that the Citizen’s United decision does not sit well in the Liberal community. They view the issue as tipping the political battlefield to heavily towards monied interests, particularly corporations. However, what liberals fail to understand is that dollar bills do not vote. When looking at the 2010 midterms- the first election where Citizen’s United had an impact- the candidate that received more outside support won a little over 50% of the elections. I firmly believe that the minority in this issue and liberals in general are seriously confused regarding the difference between “buying influence” through political advocacy versus “buying influence” in the lobbying process. I thoroughly believe that lobbying should be regulated and that those regulations need to be strengthened. Whether we agree that corporations are “citizens” within the meaning of the Constitution could be debated from here to eternity (I happen to think they are). However, as a collection of individuals (citizens), they should have a say in political advocacy and speech, as should unions. The more voices in the market place of ideas, the more freedom this country enjoys, especially in the political realm. Naturally, it is up to individual voters to make the final decisions on Election Day. And as I pointed out earlier, voters do a fairly decent job of cutting through the b.s. Well, they didn’t do such a great job in 2008, but that is another story for another day.

This decision is heartening news. There were reports that Kennedy was wavering on this issue after seeing the influx of money in the electoral process since Citizen’s United was decided. At the end of the day, he stuck with principle and stayed in the majority. This ruling effectively blunts backdoor efforts to limit political advocacy by corporations and other collections of individuals by enacting, in effect, McCain-Feingold at the state level. Put another way, the state-level campaign finance reform efforts of liberals has been shut off by the Supreme Court.